Experienced and knowledgeable attorneys have always counseled clients to include advanced medical directives as part of their overall estate plan. Now, as a direct result of the long, contentious, emotional and very public legal battle surrounding the life and death of Terry Schiavo, the general public received a stark reminder about the importance of executing and periodically updating advanced medical directives such as a living will and a medical power of attorney.
The purpose of this Client Alert is to address four main topics:
- The difference between a living will and medical power of attorney;
- The personal nature of advanced medical directives;
- The implications of the Health Insurance Portability and Accountability Act (“HIPAA”) on medical power of attorney documents; and
- The importance of creating comprehensive, legally binding advanced medical directives.
What is the difference between a living will and a medical power of attorney?
A living will describes an individual’s personal desires regarding certain medical procedures that may be pursued when the individual has a terminal condition or is in a permanent vegetative state. For example, it is not unusual for people to express the desire to forego certain artificial life-sustaining treatments where there is little or no chance of returning to the same normal, productive lifestyle they once knew and enjoyed.
Although living wills can be drafted to address a wide variety of issues and treatments, inevitably a medical situation will arise that either falls short of being deemed a “terminal condition” or “persistent vegetative state,” or simply is not covered within the scope of the living will. This inability to provide for every conceivable medical situation gives rise to the need for a medical power of attorney (or durable power of attorney for health care). Through a medical power of attorney, an individual (referred to as the “principal”) nominates or appoints a trusted representative to make medical decisions on his or her behalf when the principal is temporarily incapacitated or otherwise unable to make such decisions. The appointed representative is vested with full legal authority to make health care decisions on the principal’s behalf upon one or more physicians’ determination that the principal is unable to make decisions for himself or herself.
Advanced medical directives involve very personal decisions.
The publicity surrounding the Terri Schiavo case and the strong disagreements between her spouse and her parents focused national attention on the delicate and personal nature of medical decisions. In 1990, Terri Schiavo suffered a heart attack and as a result, was diagnosed as being in an irreversible, persistent vegetative state. At that time, she was placed on life-support. She did not have a living will to clearly state her personal feelings with respect to life-sustaining health care, nor did she have a medical power of attorney to appoint a representative to make medical decisions on her behalf. Her husband adamantly argued that in personal conversations between himself and his wife, Ms. Schiavo had expressed a desire to avoid artificial life-sustaining procedures. Her parents, on the other hand, believed that she could understand and respond to their voices, that she might one day make at least a partial recovery and should, therefore, remain on life support. In the absence of written advanced medical directives, Ms. Schiavo’s husband and parents embarked on a long and costly legal and political battle in order to decide whether or not she should continue to be kept alive using artificial life-sustaining techniques.
The case demonstrated what estate planning professionals have always known: that an individual’s end-of-life care decisions are a function of many complex parameters about which reasonable people can and often do disagree. A person’s desires regarding health care decisions may be influenced by numerous factors, such as education, science, philosophy, religion, fear, and socioeconomic background. A properly drafted living will can address a myriad of issues such as a person’s desires or thoughts about pain medications, comas, breathing machines, feeding tubes, CPR, dialysis, Alzheimer’s disease, dementia, terminal conditions and permanent vegetative state. By stating one’s personal feelings regarding some or all of these types of issues in writing, an individual can mitigate against the possibility of close friends and family fighting and perhaps litigating about his or her health care.
Because of HIPAA, the importance of having an updated medical power of attorney cannot be overstated.
Under the federal Health Insurance Portability and Accountability Act (HIPAA), which went into effect on April 14, 2003, health care providers are prohibited from disclosing an individual’s personal health information without first obtaining the patient’s written permission. A health care provider faces severe monetary fines and penalties for disclosing personal health information without written permission.
The strict privacy rules and severe penalties contained in HIPAA have had an unexpected effect with regard to pre-existing medical power of attorney documents. Certain health care providers may be understandably reluctant to disclose personal health information to a designated representative under a medical power of attorney document unless that document contains an express authorization permitting such a disclosure. The end result may be a situation where the designated representative is forced to make a medical decision on behalf of the principal without having complete access to the principal’s personal health information! A carefully crafted medical power of attorney document will contain an express, HIPAA compliant authorization so that health care providers can feel comfortable in disclosing the principal’s personal health information to the designated representative without fear of incurring statutory fines and penalties.
Without a living will and medical power of attorney, litigation may be required to determine acceptable health care.
Even prior to the Terry Schiavo case, it was easy to obtain a living will and/or medical power of attorney form in West Virginia. A sample form is set forth in W. Va. Code § 16-30-4, and similar forms are available free of charge from hospitals, doctors’ offices, hospices, and other health care providers. These free forms can even be downloaded from the Internet on a variety of websites. Despite the widespread availability of forms and sample documents, an individual should strongly consider seeking independent legal advice in connection with executing and updating advanced medical directives for a number of reasons. First, few if any of these free forms have been updated to include a HIPAA compliant authorization to release personal health information. Second, advanced medical directives are intensely personal and a competent attorney can expertly tailor the advanced medical directive documents to meet an individual’s goals and objectives. Third, and most importantly, most of the free forms that are available to the general public – while certainly better than nothing – are terribly inadequate and do not cover many common and routine medical procedures. For instance, the free forms and sample documents available in West Virginia do not address the use of feeding tubes, which was the main issue in the Terry Schiavo case.
What does it all mean?
In conclusion, it is advisable to seek independent legal advice in connection with the execution and periodic updating of advanced medical directives in order to ensure that your documents are current in relation to new laws, such as HIPAA, and to avoid the same type of problems and disagreements that plagued Terri Schiavo’s family.
The author presents these materials with the understanding that the information provided is not legal advice. Due to the rapidly changing nature of the law, information contained in this publication may become outdated. Anyone using these materials should always research original sources of authority and update this information to ensure accuracy when dealing with a specific matter. No person should act or rely upon the information contained in this publication without seeking the advice of an attorney.
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